Recent developments

4. The legal landscape of immigration detention remains fundamentally similar to that in place during the relevant period considered by this Inquiry (1 April 2017 to 31 August 2017).

4.1 There remains no overall maximum time limit on detention

4.2 A provision introduced in January 2018 required the Secretary of State to “arrange consideration of bail” for individuals who have been detained for four months who are not foreign national offenders, and make a reference to an immigration tribunal for that purpose.¹

4.3 New proposed legislation – the Illegal Migration Bill – will, if enacted, expand the Secretary of State’s role in detention decision-making and will make provision for the detention of additional categories of individuals.

5. The current legal framework is discussed below. In recent years, there have also been major changes in immigration detention practice, as a result of a number of factors.

The impact of the Covid-19 pandemic

6. Although it is not within the scope of the Inquiry to consider detention policy during the Covid-19 pandemic, the Inquiry heard evidence of its practical effects on Brook House.
7. The size of the detained population nationwide reduced significantly during the Covid-19 pandemic. Brook House closed entirely for a short period at the beginning of 2021.
8. The pandemic also affected induction, activities and staff training, including in the use of force.² For example, the Inquiry heard evidence of the use of force by detention staff who had not undergone 12-monthly refresher training.³ Due to the difficulty in running practical training sessions during the Covid-19 pandemic, the Home Office granted a temporary national dispensation to all IRCs, suspending the need for refresher training.⁴ Serco data from November 2020 showed an increased use of force during that month, with force used to prevent self-harm.⁵ Mr Steven Hewer, the current Director of Brook House and Tinsley House (Gatwick IRCs), said that this was “discussed at every meeting” with the Home Office.⁶ While I appreciate the difficulties facing an IRC required to remain open during a pandemic, I have some concern about permitting the use of force by officers not up to date with training, and an unrealistic assertion on behalf of Serco that this gave rise to “no risk”.⁷ Much more fundamental is the fact that detained people were placed and remained in Brook House in these circumstances.

The current approach to immigration detention

9. The Home Office told the Inquiry in November 2021 that detention was being “used sparingly, and as a last resort”.⁸ Levels of detention were broadly comparable to pre-pandemic numbers by June 2022, as shown in Figure 2.⁹

Figure 2: People entering immigration detention in the UK, year ending March 2014 to year ending March 2023

Source: National statistics How many people are detained or returned?, Home Office, published 25 May 2023; see also Home Office Immigration detention statistics, Det_D01. Updated statistics were due to be published at the time of going to press.

10. The Home Office also told the Inquiry: “practices in the field of immigration detention have evolved significantly since 2017”.¹⁰ It also considered that the events at Brook House did not represent the broader treatment of those detained in IRCs but nevertheless “acted as a spur for the ambitious programme of reform”, which focused on:

“minimising the use of detention; strengthening decision-making, and safeguards for the vulnerable; improving transparency, and ensuring that everyone is treated with dignity in an estate fit for purpose”.¹¹

11. The Inquiry’s assessment of the safeguarding of vulnerable people in detention is dealt with elsewhere in this Report (particularly Part D in Volume II), but immigration detention and policy remain subject to fast-moving political developments.
12. In the second half of 2020, following Britain’s withdrawal from the European Union (EU), Brook House was used as accommodation for men who had arrived in the UK, having crossed the English Channel in small boats, and who were to be removed to EU Member States before the end of the transition period on 31 December 2020.¹²) This charter flight removal programme was pursuant to an EU scheme for determination of asylum claims, which the UK was no longer to participate in following the end of the Brexit transitional period. It resulted in a steep increase in the number of vulnerable people detained at Brook House, evidenced by an increase in the use of the Assessment Care in Detention and Teamwork (ACDT) process and the number of detained people on food and fluid refusal.¹³ The Independent Monitoring Board at Brook House (Brook House IMB) recorded that the response to the risk of self-harm and suicide among the population was frequently constant supervision by officers to prevent further harm.¹⁴

Table 2: Numbers of detained people placed on constant supervision in the months of the charter flight removal programme (2020)

Source: IMB000202_11

13. In its 2020 Annual Report (the 2020 IMB report), the Brook House IMB stated:

“Concern about a detainee’s state of mind must be very high indeed to justify assigning staff to watch them at all times. Moreover, these are only the most extreme cases; more detainees were, at the same time, on hourly, overnight or less frequent watch.”¹⁵

It found that “circumstances in the centre amounted to inhumane treatment of the whole detainee population”, emphasising that the circumstances rather than the staff at Brook House were responsible for this treatment.¹⁶

14. Mr Hewer told the Inquiry that he accepted the Brook House IMB’s description of the events and its summary of concerns regarding this “difficult period”, and accepted that Brook House “wasn’t safe”, with high levels of self-harm.¹⁷ He said that the Home Office was aware of the “spike in self-harm” and the population’s vulnerability, which was discussed at regular meetings. He believed his concerns were made clear and acknowledged.¹⁸ He noted that it was the Home Office’s decision to continue to send people to Brook House, stating that he “had no control on what were allocated to us when”.¹⁹
15. Mr Ian Castle, former Home Office Detention and Escorting Services Area Manager for Gatwick IRCs, told the Inquiry of the huge stress for staff and detained people at this time, leading to senior managers being signed off sick.²⁰ He told the Inquiry that “the political drive to remove people [who had arrived] across the Channel in the small boats was difficult to keep up with”.²¹ Mr Hewer agreed.²²
16. As discussed in Chapter D.11 in Volume II, on 2 October 2020, Brook House IMB members wrote to Mr Chris Philp MP (then Minister for Immigration Compliance and Courts) informing him of the IMB’s concerns about the harmful impact of the charter flight removal programme, which it said amounted to “inhumane treatment”.²³ The government’s response, when it came, failed to address the concerns adequately. It referred to existing policies (which the IMB had shown were not keeping people safe) and repeated references to effecting removals of people “with the appropriate safeguards in place”, despite the fact the safeguards were seemingly insufficient.²⁴ The response betrayed a lack of concern for these men, and also ignored the position in which the Home Office had placed Serco and other staff at Brook House.
17. The Home Office has a wider responsibility for those detained at its behest and who are held under its care. The situation at Brook House in late 2020, described above, is a concerning example of the Home Office placing individuals into an environment where they were at risk of harm and distress, and failing to intervene when these effects became known. This undermines the Home Office’s assertion to the Inquiry that lessons have been learned, that the unacceptable treatment was due to a “small minority of staff”, and that issues with the G4S contract or insufficient Home Office resources were the primary cause of the failures at Brook House.²⁵ It calls into question the Home Office’s assurance that, since the Panorama programme, sufficient steps have been taken to make IRCs “a safe environment”.²⁶
18. The impact of, and reaction to, this concentrated programme of detaining particularly vulnerable people provides some insight into the reality of life at Brook House since the relevant period.
19. In April 2022, the Government announced that it was “expanding” immigration detention facilities.²⁷)
20. Recent changes to the law and policies concerned with seeking asylum include changes affecting those who passed through a “safe third country” and plans to speed up processing the claims of such applicants by introducing new “asylum reception centres” to replace hotel accommodation.((Immigration Rules (as amended on 31 December 2020, updated 30 January 2005), Part 11: asylum; Borders Act to overhaul asylum system becomes law, Home Office and UK Visas and Immigration, 28 April 2022. See also Factsheet: Linton-on-Ouse Asylum Accommodation, Home Office news team, 14 April 2022; Asylum Reception Centre: Linton-on-Ouse, Hansard HC Deb, 24 May 2022, vol 715 col 271) The Home Office has subsequently indicated that it intends to procure a contract “for the provision of design, build or renovation and operation of national Accommodation Centres”.²⁸)
21. On 14 April 2022, a migration and economic development partnership was announced, which provides that certain people seeking asylum in the UK who have claims deemed “inadmissible … and have made a dangerous and illegal journey to the UK may be relocated to Rwanda for processing under their asylum system”.²⁹ It was widely reported that Brook House would be used to detain individuals prior to removal to Rwanda.³⁰ The Home Secretary confirmed that the first tranche of people notified were all detained pending removal.³¹ In fact, the planned flight was cancelled shortly before departure due to legal challenges.
22. The Nationality and Borders Act 2022 was passed in April 2022. The Home Office said that it was designed to deter illegal entry to the UK and to more easily remove those with no right to be in the UK.³² I was concerned and disappointed to hear that, while the Bill was passing through Parliament, the Government “paused” plans to reform the Detention Centre Rules and Adults at Risk policy.³³ As this Report sets out in detail, particularly in Part D in Volume II, the Inquiry has received troubling evidence that clearly demonstrates that this review is urgently needed.
23. As discussed above, Parliament is currently considering proposed new legislation, the Illegal Migration Bill. The Home Office states that it would change the law:

“so that people who come to the UK illegally will not be able to stay. Instead, they will be detained and then promptly removed, either to their home country or a safe third country like Rwanda.”³⁴

24. If enacted as currently worded, the Home Secretary would be required to remove individuals to whom the Bill applied as soon as “reasonably practicable”.³⁵ The Bill also provides that those individuals may be detained “in any place” that the Home Secretary considers appropriate.³⁶)
25. The Bill provides that individuals may be detained for such a period as is “reasonably necessary” to effect removal. It would be for the Secretary of State, and not the courts, to decide what is a “reasonable” period of time. The Bill, in its current form, provides that if it became apparent that deportation would not happen within a reasonable period, the person could remain in detention “for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate”.³⁷) The Bill also includes proposed restrictions on the ability to challenge detention by way of seeking immigration bail.
26. It is not for this Inquiry to assess the policy or proposed legislative changes. However, as detailed throughout this Report, many of the safeguards designed to protect vulnerable detained people failed during the relevant period. I remain very concerned about the function of those safeguards and have made a number of recommendations, which should be considered on an urgent basis. Whatever the future of immigration detention policy, it must be underpinned by sufficient and effective rights and protections, representing a minimum standard of care.

1. Immigration Act 2016, Schedule 10 para 11[↩]
2. SER000451_012-013 para 50; Gatwick immigration detention centre closed due to staf f Covid  cases, The Guardian, 8 January 2021; SER000451_012 para 47; SER000451_013-014 para 57; SER000451_016 para 68[↩]
3. SER000451_016-017 paras 68-71; LIB000015; INQ000115[↩]
4. Steven Hewer 1 April 2022 125/25-127/3[↩]
5. LIB000176_002-003[↩]
6. Steven Hewer 1 April 2022 125/3-22[↩]
7. Steven Hewer 1 April 2022 127/18-23[↩]
8. HOM0332005_010 para 27[↩]
9. INQ000232[↩]
10. HOM0332005_002 para 5. This was endorsed by Mr Stephen Kershaw, Senior Director of the Immigration Enforcement Board at the Home Office: HOM0332166 para 16[↩]
11. HOM0332005_002 para 5[↩]
12. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (the  Dublin Regulation), 26 June 2013; see DL0000140_113-116, IMB000206. This was the programme using charter flights to remove detained people to EU countries party to the Dublin Convention prior to 31 December 2020. Brook House was used as the sole base for this programme (IMB000202_005[↩]
13. DL0000140_113-116. These matters are discussed further in Chapters D.5 and D.8[↩]
14. IMB000202_11[↩]
15. IMB000202_011[↩]
16. IMB000202_008-009[↩]
17. Steven Hewer 1 April 2022 103/18, 104/6-13[↩]
18. Steven Hewer 1 April 2022 110/1-111/15[↩]
19. Steven Hewer 1 April 2022 111/19-22[↩]
20. Ian Castle 15 March 2022 56/16-25[↩]
21. Ian Castle 15 March 2022 56/1-3, 57/3-4[↩]
22. Steven Hewer 1 April 2022 106/17[↩]
23. DL0000140_113[↩]
24. IMB000206[↩]
25. Philip Riley 4 April 2022 94/11-15; HOM0332005_003 para 6; HOM0332005_006-007 para 17; see also Part C of this Report[↩]
26. Philip Riley 4 April 2022 75/3-4[↩]
27. PM speech on action to tackle illegal migration: 14 April 2022, Prime Minister’s Office and the Rt Hon Boris Johnson MP, 14 April 2022. The Home Office has also indicated that it intends, in 2023, to procure contracts for the provision of operational, management, maintenance and related works and services at Campsfield House immigration removal centre and Haslar immigration removal centre (see Home Office procurement pipeline, 20 December 2019, references C23340, C23929[↩]
28. Home Office procurement pipeline, 20 December 2019, reference C21671 (see also Home Office  procurement pipeline[↩]
29. Migration and Economic Development Partnership with Rwanda: equality impact assessment, Home Office, updated 4 July 2022[↩]
30. Home Office threatens hunger strikers with faster deportation to Rwanda, The Guardian, 2 June 2022[↩]
31. Home Office detains all asylum seekers it plans to send to Rwanda, The Guardian, 22 May 2022; Migration and Economic Development Partnership with Rwanda: equality impact assessment, updated 4 July 2022[↩]
32. Implementing the Nationality and Borders Act 2022: Amendments to tribunal fees, 23 November 2022[↩]
33. HOM0332051_008 para 34[↩]
34. Home Office, Policy paper, Illegal Migration Bill: overarching factsheet, updated July 2023[↩]
35. Illegal Migration Bill, clause 5[↩]
36. Illegal Migration Bill, clause 10(2[↩]
37. Illegal Migration Bill, clause 11(1[↩]